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Crim Pro > Crim Pro MBE- SEARCH AND SEIZURE > Flashcards

Crim Pro MBE- SEARCH AND SEIZURE Flashcards

1
Q

Approach

A

time slice to time slice

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2
Q

for search to apply you need,

A

government agent or direction of cop or government agent

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3
Q

What is a search?

A

looking where you have a reasonable expectation of privacy

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4
Q

open field doctrine

A

no reasonable expectation of privacy in an open field

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5
Q

if you expose it to public, do you have a reasonable expectation of privacy?

A

nah

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6
Q

standard for search

A

probable cause

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7
Q

probable cause

A

reasonable person would conclude it is more like than not that a crime has taken place

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8
Q

for a search, you need a

A

warrant

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9
Q

warrant elements

A

1) neutral and detached magistrate
2) facts have to be fresh
3) person and places have to be specific

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10
Q

warrant for contents of home

A

search home

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11
Q

generally cops need to

A

knock and announce, but its still a valid search

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12
Q

can cops rely on informants

A

yes if reliable

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13
Q

when can you take something you find while doing a search

A

plain view (admissable)

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14
Q

once they find what they are looking for

A

search must stop

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15
Q

unlawful arrest from bad search

A

inadmissible, but not grounds for dismissal of indictment

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16
Q

protective sweep

A

look for more bad guys for safety

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17
Q

when can you do protective sweep?

A

only if reason to think there would be others

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18
Q

Exceptions to warrant

A

consent, search incident to lawful arrest, inventory search, exigent, auto exception

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19
Q

Consent

A

i let in the cop

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20
Q

who can consent

A

person or someone with apparent authority to control

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21
Q

what if locked bedroom door?

A

close call, but other person can maybe consent to house, but that person has a reasonable expectation of privacy in their room

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22
Q

what if 2 people can consent and one says no

A

cant search

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23
Q

if only one is present and they consent

A

valid search

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24
Q

search incident to lawful arrest

A

person or wingspan

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25
Q

if arrested in car, can you search passenger compartment?

A

yes if not tied up and can access it or reasonable velief thre is evidence

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26
Q

inventory search

A

can check person or car (think impound or booking)

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27
Q

exigent circumstances

A

reasonable belief it will be lost or destroyed (i.e. think witnessing flushing down the toilet)

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28
Q

auto exception

A

cop can follow as long as he wants; cant stop w/o reason to stop; if evidence of crime, can stop

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29
Q

if routine traffic stop

A

can only check back of car, but not passenger compartment or brief cases

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30
Q

Speeding and slurred speech?

A

yes. Now there is evidence of a crime

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31
Q

pull window down and blood from glove compartment

A

yes. evidence of crime

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32
Q

Amber alert

A

yes probable cause of crime

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33
Q

border

A

no warrant necessary

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34
Q

search outside US

A

US officials can search you on foreign land

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35
Q

dog sniff in public place?

A

not a search

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36
Q

Stop and Frisk (walking on street)

A

stop- cops can talk to you if there is reasonable suspciion crime is afoot

Frisk- further evidence i may be armed

37
Q

Autostop

A

if generic checkpoint then okay

38
Q

Custodial interrogation (Miranda rights)

A

statement is subject to Miranda if the statement is the product of a custodial interrogation

39
Q

custodial interrogation

A

custody- objectively, you don’t feel free to leave

Interrogation- statement cops makes is trying to elicit some criminal response

40
Q

can cop not give Miranda rights for a while?

A

yes.

If i blurt something out on my own, I volunteered

41
Q

if under custodial interrogation you have rights to miranda. what is miranda

A

right to remain silent; can be used against you; right to attorney. if cannot afford one will be appointed one

42
Q

if i request my lawyer all questioning must cease

A

all questioning must cease

43
Q

Can i waive miranda

A

yes. knowingly and voluntary

44
Q

Right against self incrimination

A

right not to incriminate yourself in testimonial evidene

45
Q

can i make someone do a physical activity

A

yes. not a statement

46
Q

lineup and id

A

lineups are okay, but they cannot be unnecessarily suggestive to single someone out

47
Q

out of court id that is too suggestive but you are in court

A

but in court id is reliable, it will be valid and used against you

48
Q

lineup

A

no right to counsel at a lineup prior to indictment

49
Q

After indictment, lineup

A

you have right to counsel

50
Q

right to counsel

A

fifth amendment right to counsel before charges or indictment

51
Q

sixth amednment

A

right to counsel after charges

52
Q

right to effective counsel

A

did the attorney deviate from the norms and reasonably probable that the verdict would not have been guilty

53
Q

presumption of counsel

A

they were effective

54
Q

can you waive right to counsel

A

knowingly and voluntary

55
Q

right to counsel at all critical stage of proceedings

A

after indictment

56
Q

no right to counsel

A

pre indictment

57
Q

can two ds share one lawyer

A

yes, but if one conflict shows up then you cannot

58
Q

jail cell and undercover cop to get john to talk

A

that violates the right to counsel

59
Q

Guilty plea

A

voluntarily and intelligently so you know what you are getting yourself into

60
Q

can you sever trial?

A

yes. if there is unfair prejudice.

61
Q

impartiality for fair trial

A

right to unbiased judge

62
Q

competency

A

d must be competent to understand charges and work with lawyer

63
Q

jury trial

A

right to jury trial if the offense has a sentence longer than 6 months

64
Q

jury should be

A

cross section of community

65
Q

state trial with 6 members

A

must be unanimous

66
Q

state trial 12 members

A

does not need to be unanimous

67
Q

federal trial with 12 jurors

A

must be unanimous

68
Q

exclusion based on race

A

violation of equal protection

69
Q

public trial

A

right to public trial. all trials can be public except grand jury unless judge has overriding interest to close the trial

70
Q

right to confrontation

A

you have right to confront and cross all witnesses even if out of court

71
Q

co-defendants

A

1 d makes a confession implicating the other, I have the right to make sure you testify

72
Q

Statements out of court which implicates D

A

whether statements were testimonial; i.e. not made during an emergency then it is inadmissable

73
Q

if statement was not testimonial

A

i.e. police, 911 call, then it is coming in

74
Q

Procedural rights- prosecution

A

must prove all elements in question beyond a reasonable doubt

75
Q

procedural rights- defense

A

affirmative defense is preponderance of evidence by defense

76
Q

criminal case presumption

A

no mandatory presumptions, it violates due process

77
Q

grand jury

A

no right to even know they are investigation; not even present; exclusionary rule does not apply; even inadmissable evidence

78
Q

grand jury witness

A

no right to counsel; can be outside.

79
Q

double jeopardy

A

cant be tried for the same crime twice

80
Q

first trial must have…

A

happened

81
Q

when did trial number one begin

A

when jury is worn and impaneled or when first witness is sworn in

82
Q

if trial 1 began you need

A

final verdict

83
Q

final verdict exceptions

A

separate Sovreign- tried in two different states

state and federal court- yes

county a v county b- double jeopardy

84
Q

what if d appeals a conviction

A

you can try it again

85
Q

collateral estoppel

A

tried for robbery and found not guilty and want to try for felony murder

cannot try because you need an element in the second trial as first trial and that element cannot be met if you were acquitted

if elements and manslaughter are different you can try again.

86
Q

cruel and unusual punishment

A

sentence must be proportional to the crime and similar to other criminals in other crimes

87
Q

right to counsel

A

during sentencing and the right to remain silent

88
Q

death penalty is not

A

cruel and unusual as long as there is procedural safeguards in place to prevent arbitrary or discrimiantory sentencing

89
Q

cannot execute anyone

A

under 18 at time of crime or mentally challenged

Crim Pro (5 decks)

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